M/s Khurja Development Authority, Bulandshahr V. Addl. CIT, Bulandshahr

ITA 2687/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3063 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Section: 143(3); 142(1); 12A; 12AA; 11

Judgement Text

PAGE 1 OF 6 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2687/DEL/2016 A.Y.: 2011-12 KHURJA DEVELOPMENT AUTHORITY, VS. ADDL. CIT, YAMUNAPURAM COMMERCIAL COMPLEX, EXEMPTION RANGE, MG ROAD, BHOOR, CGO BUILDING II, BULANDSHAHR 203001 HAPUR ROAD, (PAN: AAALK0805D) GHAZIABAD 201 001 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. S.S. RANA, CIT(DR) O R D E R PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 24/2/2016 PASSED B Y THE LD. COMMISSIONER OF INCOME TAX(APPEALS), GHAZIABAD ON THE F OLLOWING GROUNDS :- 1. BECAUSE THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND AGAINST THE FACTS OF THE APPEAL. PAGE 2 OF 6 2. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WHOLLY UNJUSTIFIED IN DISMISSING THE APPE AL MERELY ON THE GROUND THAT THE DEPARTMENT HAS FILED A SLP AGAINST THE ORDER OF HON'BLE ALLAHABAD HIGH COURT CONFIRMING THE ORDER OF HON'BLE ITAT GRANTING REGISTRA TION U/S 12A OF THE ACT. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO IGNORED THE FACT THAT HON'BLE APEX COURT HAS ACCEPTED THE SLP BUT NOT GRANTED ANY STAY AGAINST THE ORDER OF HON'BLE ALLAHABAD HIGH COURT. 3. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT WHEREAS THE MAIN GROUND IN THE APPEAL BEFORE LEARNED CIT (APPEAL) WAS THAT THE ASSESSING OFFI CER HAS ASSESSED SURPLUS OF RECEIPTS AND EXPENDITURE ACCOUNTS' MERELY ON THE BASIS OF REJECTION OF REGISTRATION U/S 12A, BY COMMISSIONER OF INCOME TAX, ALTHOUGH THE ISSUE OF REGISTRATION WAS DECIDED BY HON'BLE ITAT, NEW DELHI IN FAVOUR OF THE APPELLANT AND FURTHER CONFIRM ED BY HON'BLE ALLAHABAD HIGH COURT BY REJECTING APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF HON'BLE ITAT. NOW THE MATTER OF REGISTRATION U/S 12A IS SUB-JUDICE BEFORE HON'BLE SUPREME COURT, AS SLP FILED BY THE DEPARTMEN T PAGE 3 OF 6 HAS BEEN ADMITTED BUT THE STAY AGAINST THE ORDER OF HON'BLE ALLAHABAD HIGH COURT WAS NOT GRANTED BY THE APEX COURT. 4. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OF THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE FACTS IN BRIEF ARE THAT ASSESSEE HAS FILED ITS RET URN OF INCOME IN THE STATUS OF AOP (TRUST) SHOWING TAXABLE INCOME AT RS. NIL A FTER CLAIMING EXEMPTION U/S 11 OF THE INCOME TAX ACT, 1961 (HEREAFT ER REFERRED AS THE ACT) TOWARDS EXCESS OF INCOME OVER EXPENDITURE AT RS. 3,46,79,596/-. IN THIS CASE THE RETURN WAS PROCESSED U /S 143(1) OF I.T. ACT, 1961 ON 20.12.2012 ON RETURNED INCOME. LATER, TH E CASE WAS SELECTED UNDER SCRUTINY THROUGH CASS AND NOTICE U/S 143(2) OF I .T. ACT, 1961 DATED 08.8.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE. FURTHER , NOTICE U/S. 142(1) ALONGWITH DETAILED QUESTIONNAIRE DATED 22.8.2 013 WAS ISSUED TO THE ASSESSEE. IN COMPLIANCE TO THESE NOTICES THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FURNISHED THE R EQUIRED DETAILS / EXPLANATION. THE BOOKS OF ACCOUNT WERE PRODUCED AND EX AMINED ON TEST CHECK BASIS. THEREAFTER, THE AO OBSERVED THAT AS THE ISS UE OF REGISTRATION U/S 12A OF THE ASSESSEE AS ON DATE IS SUB-JUDICE BEFORE THE APPELLATE AUTHORITIES, THEREFORE THE SUBMISSION OF THE ASSESSEE IS NO T ACCEPTABLE. AS ON DATE, THE ASSESSEE HAS NO REGISTRATION U/S 12A OF THE I .T. ACT, 1961. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U /S 11 OF PAGE 4 OF 6 THE I.T. ACT,. 1961 AND ALL THE SURPLUS INCOME OVER THE EXPENDITURE ARE TAXABLE UNDER THE NORMAL PROVISIONS OF I.T. ACT, 1961 . ACCORDINGLY, THE AO HELD THAT AS PER THE INCOME & EXPENDITURE A/C ENCLOSED W ITH THE RETURN, THE ASSESSEE HAS SHOWN SURPLUS AT RS. 3,46,79,596/-. ACCORDINGLY , THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 31.10.2013 PASSE D U/S. 143(3) OF THE ACT ON TOTAL INCOME AT RS. 3,46,79,596/ -. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT (A), WHO VIDE HIS IMPUGNED ORDER DATED 24.2.2016 HAS HELD THAT IT I S UNCONTROVERTED FACT THAT AS ON DATE THE ASSESSEE DOES NOT ENJOY REGISTRATION U/S. 12AA AND SUCH REGISTRATION IS MANDATORY FOR AVAILING EXEMPTION U/S. 11 TO 13 OF THE ACT. THE ASSESSMENT ORDER THEREFORE, DENYING SUCH EXEMPTIO N IN ABSENCE OF MANDATORY REGISTRATION U/S. 12AA CALLS FOR NO INTERFE RENCE. 3. AGGRIEVED WITH THE IMPUGNED ORDER DATED 24.2.20 16 PASSED BY THE LD. CIT(A), GHAZIABAD, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MA TTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW TH AT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE PAGE 5 OF 6 ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APP EAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE R ECORDS. 5. SH. S.S. RANA, LD. CIT (DR) APPEARED FOR THE DE PARTMENT AND RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. MR. RANA, STATED THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS EXACTLY SIMIL AR TO THE ISSUE INVOLVED IN THE CASE OF JAMMU DEVELOPMENT AUTHORIT Y VS. UOI (2014- TIOL-115-SC-IT) WHICH HAS BEEN DECIDED IN FAVOUR OF TH E REVENUE BY THE HONBLE SUPREME COURT OF INDIA. THEREFORE, HE REQUEST ED THAT FOLLOWING THE AFORESAID PRECEDENT, THE APPEAL OF THE ASSESSEE MAY BE DI SMISSED. FOR THE SAKE OF CONVENIENCE, HE FILED THE COPY OF THE DECISION O F THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF JAMMU DEVELOPME NT AUTHORITY VS. UOI (2014-TIOL-115-SC-IT). 6. WE HAVE HEARD THE LD. CIT (DR) AND PERUSED THE RE CORDS, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES AS WELL AS R ELEVANT RECORD, WE ARE OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS RIGHTL Y DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT AS ON DATE THE ASSESSEE IS NO T IN POSSESSION OF REGISTRATION U/S. 12AA OF THE ACT, WHICH IS MANDATOR Y FOR AVAILING THE EXEMPTION U/S. 11 TO 13 OF THE I.T. ACT, 1961. WE HA VE ALSO PERUSED THE APPEAL FILE AND WE ARE OF THE VIEW THAT ASSESSE HAS NOT FILED ANY CERTIFICATE OF REGISTRATION GRANTED U/S. 12AA OF THE I.T. ACT, 196 1, WHICH IS MANDATORY FOR AVAILING THE EXEMPTION U/S. 11 TO 13 OF THE ACT , BEFORE THE AO AS WELL AS LD. CIT(A) AND EVEN BEFORE THE TRIBUNAL. THEREFO RE, IN THE ABSENCE OF THE SAME, WE ARE UNABLE TO ACCEPT THE REQUEST OF THE A SSESSEE FOR GRANT OF EXEMPTION U/S. 11 TO 13 OF THE I.T. ACT. KEEPING I N VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE L D. CIT(A), BECAUSE THE ISSUE INVOLVED IN THE PRESENT APPEAL IS EXACTLY SIMI LAR TO THE ISSUE INVOLVED IN THE CASE OF JAMMU DEVELOPMENT AUTHORITY VS. UOI (2014-TIOL- PAGE 6 OF 6 115-SC-IT) IN WHICH REGISTRATION U/S. 12A OF THE I.T. ACT WAS CANCELLED BY THE LD. CIT(A) AND ORDER OF THE LD. CIT(A) WAS UPHEL D BY THE ITAT AND HONBLE JAMMU & KASHMIR HIGH COURT AND FINALLY AN SLP FILED BY THE JAMMU DEVELOPMENT AUTHORITY HAS ALSO BEEN DISMISSED BY THE HON BLE SUPREME COURT OF INDIA. THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE SUPREME COURT OF INDIA DECISION IN THE CASE OF JAMMU DEVELOPMENT AUTH ORITY VS. UOI (2014-TIOL-115-SC-IT), WE UPHOLD THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REJECT THE GROUNDS RAISED BY THE ASSESSEE BY DI SMISSING THE APPEAL FILED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON 04/12/2017. SD/- SD/- (L.P. SAHU) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 04/12/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES